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Thursday, May 28, 2015

Restoring Lost Citizenship

Very good post up today on the Isaac Brock Society website. Eric, who writes from Asia, calls attention to the case of a South Korean pop star who renounced S. Korean citizenship in 2002. Yoo Seung-jun (these days a resident of China)now wishes to reverse that decision - he wants to renounce his American citizenship and have his South Korean citizenship restored to him. Here is the link to Eric's post:

"1. Automatically one year from the date in which they established residence on Italian soil, unless they renounce it within that term of time.
2. By specific declaration:

serving in the Italian armed forces;

by being or having been in the employ of the Italian government, even abroad;

if a foreign resident, once legal residence in Italy is established, within one year of the declaration for reacquisition submitted to the Italian consular authorities;

once legal residence in Italy has been established for at least 2 years, and it can be proven that the applicant has left the foreign government employ or military service undertaken despite express prohibition by Italian law."

"1. A person who has lost his/her Vietnamese nationality as prescribed in Article 26 of this Law and applies for restoration of Vietnamese nationality may restore his/her Vietnamese nationality, if he/she falls into any of the following cases:

Having applied for permission to return to Vietnam;

His/her spouse, a natural parent or a natural offspring is a Vietnamese citizen;

Having made meritorious contributions to Vietnam’s national construction and defense;

Being helpful to the State of the Socialist Republic of Vietnam;

Conducting investment activities in Vietnam;

Having renounced Vietnamese nationality for acquisition of a foreign nationality but failing to obtain permission to acquire the foreign nationality.

2. Persons applying for restoration of Vietnamese nationality may not restore Vietnamese nationality, if such restoration is detrimental to Vietnam’s national interests."

And what about U.S. citizenship? The one where potential renunciants are warned and warned again that their loss of citizenship is "irrevocable"? Well, not quite. Read the fine print in the U.S. Department of State Foreign Affairs Manual Volume 9:

"A loss of citizenship is permanent and irrevocable, unless the U.S. Government subsequently overturns the loss for involuntariness or lack of intent." (Italics are mine)

According to Ben Herzog in Revoking Citizenship, between 1982 and 1985 the US Board of Appellate Review (the entity responsible for validating or reversing loss of citizenship cases at the time) reversed the loss of US citizenship in 35% of the cases reviewed - even those that involved a individual who had formally renounced US citizenship at a US consulate.

Between 1973 and 1990 about 400 members of the Original African Israelite Nation of Jerusalem official renounced US citizenship. After some members left the group, they asked that their US citizenship be restored. "In 1990, the board dealt with eight cases. It decided to restore citizenship in five cases, and rejected the other three. Later that year, the board revisited those three cases and concluded that the renunciation had been psychologically forced and hence reversed its prior decisions."

So, regaining US citizenship even after a formal renunciation was possible; the State Department had a procedure and a board that reviewed such cases. A reversal was never guaranteed but there was a chance.

It appears that the Board of Appellate Review ceased to exist around 1991 - about the time the State Department changed its policies (following the results of US court cases that set a new standard for "voluntary" and emphasized "intent") about expatriating acts and dual citizenship.

Today in 2015 a renunciant can ask the State Department for an administrative review (see U.S. Department of State Foreign Affairs Manual Volume 7) of that loss of US nationality if any one of the following apply:

"(1) The law under which the holding of loss of nationality was made is later held unconstitutional; for example, a law concerning voting in a foreign election;
(2) A major change in the interpretation of the law on expatriation is made as a result of a U.S. Supreme Court decision; for example, the decision in Afroyim v. Rusk or Vance v. Terrazas;
(3) A major change is made in the interpretation of the law by the Department or is made by another agency and adopted by the Department. Most of these changes arose under previous statutes and prior to the decision in Afroyim v. Rusk; for example, cases involving naturalization of a minor; and
(4) Substantial new evidence of involuntariness or intent, not previously considered but contemporaneous to the time when the potentially expatriating act was performed, is presented by the individual."

And if the former US citizen is denied, then he or she can then file a court case asking that State's decision be over-ruled.

Given that standard for "voluntary" and "intent" what are we to make of the cases before us today? US citizens are renouncing in record numbers, but many openly say that they feel forced into doing so. Not, mind you, because of taxes, but because of a tax system with onerous requirements with which it is difficult and expensive to comply.

I am dead certain that there will be requests for restoration of US citizenship in the future from some of today's renunciants. How will the State Department judge those cases? No idea. Will it go to the courts? Absolutely.

8 comments:

Inaka Nezumi
said...

I don't see requests for restoration being granted under the present situation. That would require an admission on the part of the government that their rules and red tape constitute an unreasonable burden on citizens abroad. If they were willing to admit that, they could instead have simply changed the rules to be less burdensome in the first place.

If they start issuing Presidential declarations and Congressional resolutions apologizing for having been so beastly, asserting "We're better than that," and so forth, then maybe restorations might be on the menu. Along with popsicles in Hell.

In 1973, the insisted I was "permanently and irrevocably" relinquishing American citizenship by becoming a Canadian citizen. They warned me of dire consequences. They insisted I was young (22) and would change my mind but would not be able to.

in the early days at Brock, someone (I don't remember who) said the U.S. used to punish people for becoming citizens of other countries by stripping them of their American citizenship. Now they punish them by trying to force American citizenship on them.

@Nezumi-san I keep thinking back to that old ruling with the cult members. Psychological coercion. So let's take an example of that: non US spouse puts pressure on the non-US spouse to renounce. Threatens divorce, taking away the kids, getting him or her kicked out of the country of residence and all that jazz. I'd say that the renunciant would have a case that it wasn't voluntary at all.

This sort of thing has been on my mind recently. I've met some folks who are having marriage problems here with their Japanese spouses and in two cases the Japanese spouse tried to get the foreign spouse kicked out of Japan (one was successful). On the other side I know of a US person who got his/her ex put on the Homeland Security list of Bad People and the ex has been denied entrance into the US for as long as he/she lives.

So there are situations where spouses or ex-spouses do some pretty horrible things. As bad as the FATCA/CBT regime is, telling a wife or husband that he MUST renouce or else is pretty abusive. But in some cases, pretty damn effective - imagine a woman with small children who has been out of the job market for a few years and is living in a foreign country.

@Blaze, and yes, I was thinking about you when I wrote the post. The US government could unilaterally say OK, folks, you (or some subset of you) are citizens again. Aren't you THRILLED? :-)

Yikes, those stories are scary. Yes, I suppose "the evil ex-spouse made me do it" might get a sympathetic reception. Maybe even, "the evil bank threatened to call my mortgage and leave me homeless"? Some way to put the blame on third-party coercion.

But in general, I would assume one should not give up citizenship if there is any possibility one might want it back in the future. Assume it is permanent.

(And of course, blanket restoration could cause problems for some people, such as those in countries that don't permit dual citizenship.)